Toxic Torts: An Overview

Toxic comes from the Greek word meaning, "of, relating to, or caused by a toxin; toxin is defined as, "a poisonous substance produced by metabolic activities of a living organism that is usually unstable, very toxic when introduced into tissues and usually capable of inducing antibodies. A tort is defined as, a "wrongful act for which the injured party can recover damages in a civil action.

We just finished seven arduous years of litigation in a Civil Action type toxic tort case involving groundwater contamination in Southern California. The case was fiercely defended with motions made and granted for change of venue, writs taken and accepted, trips to the appellate court and the Supreme Court on issues of pre-emption and regulatory jurisdiction, judicial assignment challenges made and granted, demurrers made and granted, punitive damages and stigma claims for property damages struck, and many dismissals granted for plaintiffs failure to answer pending discovery in the form of questionnaires.

The cases began with over 1000 plaintiffs, filed by two very experienced and well financed plaintiffs’ firms, with 8 cases in one group and 6 cases in another group, later consolidated into one case group, in Central Civil West. At the time of this writing, the case total has dropped from 100 cases to approximately 540 cases.

Even with extremely experienced plaintiffs counsel, defense counsel and a judge, the lesson learned after seven years is that the case it just too large. The size and complexity of the case created administrative challenges all sides. There were over 70 defendants sued by over 1000 plaintiffs. Within the defendant grouping there were industrial defendants, municipalities, regulated water purveyors and non-regulated water purveyors. The case became an organizational nightmare for all counsel, but more so for plaintiffs’ counsel. In an attempt to minimize costs and share expenses, approximately 65% of the industrial defendants organized into a Joint Defense Group. Nevertheless, the size of the case caused all parties to feel that they were moving an elephant down the football field. And, after two years post-Supreme Court remand, we are still in the first quarter of the football game.

Plaintiff’s perspective: These cases are very very expensive for plaintiffs’ counsel to undertake and difficult to prove. Before filing a toxic tort case, make sure you can afford to take it because it will be a long road. Funding the litigation usually will take opening lines of credit. The expense comes in administering "the case" over the long-term and in retaining multiple layers of experts.

Causation is key. Before you begin, you better have the causation evidence locked in solid and be able to withstand a Bockrath challenge to your complaint. The defendants will insist that you not only tell them what toxins of their client caused which specific illness in your plaintiff but also show a causal nexus, either in pleading per Bockrath or closer to trial in a Cottle hearing.

Recalling the definitions quoted above, plaintiffs must prove that there is a poisonous substance, which was very toxic when introduced into tissues. That is called DOSE, meaning that the toxic substance actually penetrated the tissue in some fashion: inhalation, ingestion or through dermal contact. Secondly, they must prove that it belonged to a particular defendant and that it caused the "tort"--the injury, which is the second part of our definition of toxic tort. Experts are needed in water distribution, above and below ground, toxicology, epidemiology, industrial hygiene plus all the attendant medical specialties and subspecialties. Plaintiffs counsel must be sure that they can survive a Daubert challenge or there is no reason to pursue the case.

Defendants’ perspective: Organization and cooperation are key. It is extremely beneficial to form a joint defense group and be an active participant in the tasks performed by that group. The court will ordinarily encourage defendants to join such a group because it is the only way the court can effectively manage so many defendants and the case. There are definite cost savings for defendants who participate in a joint defense group through sharing the expense of experts and the efficient division of labor through reducing redundant effort. "Freeloaders", the non-working members of the group, can be a problem for defendants in such a group, but they will be caught unprepared at trial if those doing the majority of the work settle out. A trial lawyer should be placed at the helm of such a group because a mass toxic tort case is not an EPA administrative case. It needs to be prepared for trial through the eyes of someone who has been there before.

Group alliances formed in the EPA proceeding can be disruptive to the functioning of the joint defense group, bogging down the ability of the joint defense group to make decisions and move forward. If possible, it is best not to have any EPA proceeding pending while the toxic tort case is ongoing. It is also best to clear all coverage issue without filing declaratory relief actions as such actions may produce evidence damaging to the toxic tort case.

The court’s perspective: Our jurist, well regarded for his expertise in handling large, complex civil litigation, often remarked that this is the largest, most complex toxic tort case he has presided over. The court conducted monthly status conference to avoid motion practice. There, he would talk through the issues with counsel, issues which were teed-up in the required monthly joint status conference submissions. Unresolved issues, post liaison counsel "meet and confers" would be resolved by decisions rendered on the record and posted thereafter in minute orders on the court ordered website, Verilaw. Liaison counsel was appointed by both sides as spokespersons for the group. We were one of three liaison counsel for the industrial defendants.

The court did a great job managing the case. There was a master complaint filed and master answers submitted post scheduled demurrer hearings. Joint briefs were submitted by all parties. Discovery is controlled by the court. The court permitted an initial round of court approved discovery by plaintiffs limited to obtaining documents from each defendant as well as inquiring about insurance information, the nature of each defendants’ business and history of chemical use at the site. Defendants were permitted to propound a questionnaire to all plaintiffs. The court gave plaintiffs a year to answer the questionnaires, dismissing those who, after an extension or two, failed to answer. The court randomly selected bellwether plaintiffs from each case groups, as well as preference plaintiffs, to continue into the next round of discovery prior to selection of trial groups. Motion practice and expert depositions will follow, culminating in a Daubert hearing.

In this case, the stay had the effect of running the statute of limitations for plaintiffs, thereby limiting the ability of other lawsuits to be filed in the intervening seven years. This represented the elimination of a serious threat to defendants who saw this as potential serial litigation from a Basin with over one million residents. Our firm lead this effort from the beginning with the taking of the first writ culminating in an opinion from the California Supreme Court entitled Hartwell v. Superior Court (2002) 27 Cal.4^th 256.

Taking the case to the PUC was a brilliant idea of the regulated water purveyor defendants which would not have impacted the outcome in #1 above unless the court had granted our writ requesting a stay of all proceeding while the PUC investigation into water quality served by the water purveyor defendants was pending.

The findings and conclusions of the PUC investigation into water quality has and will continue to impact the toxic tort case, for both the water purveyor and industrial defendants.

Time has worked in defendants favor. The case began seven years ago and discovery is just now beginning against the bellwether and preference plaintiffs. Expert discovery has yet to begin. The first round of good faith settlement motions are set for next month. If these motions are granted, this will represent the first monies that we are aware of that plaintiffs will collect in these cases.

In conclusion, it is a testament to both the size and complexity of these cases that after seven years, the cases are just beginning discovery—they are just too large. If you are plaintiffs’ counsel, you should either file smaller cases or be prepared to fund the litigation for the long haul through at least the causation/Daubert hearing. If you are defense counsel, you will need to organize the defense group in order to efficiently and effectively move the case forward toward those Bockrath, Cottle and Daubert hearings. If you are the court, you will need patience, experience, skill and initiative to manage the case and all these lawyers in your courtroom.

This article is reprinted with permission from the May 3, 2004 issue of The Recorder. © 2004 ALM Properties Inc Further duplication without permission is prohibited. All rights reserved.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.